The archived blog of the Project On Government Oversight (POGO).

Oct 25, 2011

Did DOJ Watch Too Much Fight Club? New Proposal Could Allow Agencies to Deny Documents' Existence

By DANA LIEBELSON

The first rule of Fight Club is that you do not talk about Fight Club--but what if that rule also applied to certain government records? The Department of Justice (DOJ) has made a proposal that would win Tyler Durden's approval: empower agencies to mislead FOIA requesters about the existence of certain sensitive documents.

The proposal relates to sensitive requests for national security and law enforcement documents, such as in cases where the request would disclose the name of an individual still under criminal investigation. Currently, agencies are permitted to issue a “Glomar denial” to these requests, in which an agency tells a FOIA requester that it can neither confirm nor deny the existence of the records.

But according to a proposed rule revision submitted by the DOJ in March 2011, when a government agency decides to “exclude records from the requirements of FOIA…the [agency] will respond to the request as if the excluded records did not exist”(emphasis added).

Several good government groups have spoken out against the proposed rule revision. POGO said in a public comment that the revision would permit agencies to "present a false and misleading FOIA response regarding certain law enforcement records."

Meanwhile, our friends at the ACLU, CREW, and OpenTheGovernment.orgwrote that “authorizing government agencies to lie to FOIA requesters by affirmatively denying the existence of agency records when they actually exist undermines the purpose of FOIA…and destroys integrity in government.”

According to the letter, the propsoed revision is also problematic because it could thwart the judicial review process for obtaining the documents. “Few reasonable requesters would litigate FOIA denials where their requests were denied on the grounds that no documents exist, because as far as they would know there would be nothing for a court to compel the government to disclose,” the groups wrote.

The ACLU/CREW/OpenTheGovernment.org letter provides a commonsense alternative to the DOJ’s proposal. Instead of denying that the records exist, the groups suggest, why not simply acknowledge the request, but say the documents are not subject to disclosure requirements?

Specifically, the agency could respond that “we interpret all or part of your request as a request for records which, if they exist, [are] not subject to the disclosure requirements of FOIA.”

ProPublica reported that the DOJ reopened comment submissions on the proposal in September at the request of open government groups. This period ended October 19.

The official submission period may be closed, but it’s not too late to write the DOJ and protect FOIA using the seventh rule of Fight Club: “fights will go on as long as they have to.”